Ideal Garden Complex Private Limited vs Vijai Agencies

Govardhan, J.—The defendant is the appellant.

This appeal arises out of the judgment passed by the learned Principal District Judge, Salem, dated 21.11.1991 remanding the suit to the trial

court for fresh disposal according to law in the light of the observations made in his judgment.

The plaintiff has filed the suit for declaration and injunction restraining the defendant from seeking eviction of him from the suit property other

than due process under law.

In the written statement, the defendant has stated that he had informed the plaintiff that he wanted to demolish and put up a new construction in

the suit property and therefore requested him to vacate the property and that he did not take any steps to forcibly evict the plaintiff.

When the suit came up for trial before the learned Principal District Munsif, Salem on 8.4.1991, the plaintiffs advocate made an endorsement to

the effect that the suit is not pressed and may be dismissed as the defendant has already taken steps to evict the plaintiff by filing an application

under the Tamil Nadu Buildings (Lease and Rent Control) Act. On that endorsement, the suit has been dismissed without costs.

Aggrieved over the same, the plaintiff has preferred an appeal to the District Judge, Salem. The learned Principal District Judge, Salem has held

that the endorsement made by the advocate for the plaintiff is in pursuance of an agreement contemplated under Order 23, Rule 3 of CPC and

therefore the dismissal of the suit without the signature of the parties is not proper and on that ground allowed the appeal setting aside the judgment

of the trial court and remitted the matter to the trial Court for fresh disposal.

Aggrieved over the same, the defendant has come forward with this appeal.

This appeal is against the judgment of the learned Principal District Judge, Salem remanding the matter to the trial court on the ground that the

endorsement made by the advocate for the plaintiff on the plaint not pressing the suit without the signature of the parties is not proper and therefore

it has to go to the trial court for trial. The learned Counsel for the appellant would argue that under Order 23, Rule 1, C.P.C., at any time after the

institution of a suit, the plaintiff may against all or any of the defendants abandon the suit or abandon a part of his claim and when the plaintiff has

given vakalath to his advocate, the advocate concerned is entitled to make necessary endorsement of withdrawing the suit or abandon a part of the

claim in the suit and it is not necessary that the party should sign the endorsement. The learned Counsel for the appellant relies on the decision

reported in Byram Pestonji Gariwala v. Union Bank of India AIR 1991 S.C. 2567, for the above proposition. In the said decision their Lordships

have held as follows:

The words in writing, and signed by the parties inserted in Order 23, R.3, C.P.C. by the C.P.C. (Amendment) Act, 1976 necessarily mean and

include duly authorised representative and counsel. Thus a compromise in writing and signed by counsel representing the parties, but not signed by

the parties in person, is valid and binding on the parties and is executable even if the compromise relates to matters concerning the parties, but

extending beyond the subject-matter of the suit. A judgment by consent is intended to stop litigation between the parties just as much as a

judgment resulting from a decision of the Court at the end of a long drawn out fight. A compromise decree creates an estoppel by judgment.

Learned Counsel for the respondent would on the other hand argue that it has been held in the decision in Banwari Lal Vs. Smt. Chando Devi

(through L.R.) and another, , that a party challenging the compromise can file a petition under proviso to Rule 3 of Order 23, or an appeal u/s

96(1) of the Code, in which he can now question the validity of the compromise and if the agreement or compromise is fraudulent it shall be

deemed to be void within the meaning of the explanation to the proviso to Rule 3 and as such not lawful. According to the learned Counsel, in the

instant case, the plaintiff has not authorised his advocate to make an endorsement withdrawing the suit as not pressed on account of the filing of the

Rent Control petition by the respondent and in fact the plaintiff has given a complaint to the Bar Council of Tamil Nadu against the advocate for

making such an endorsement and the Bar Council has also taken action against the advocate and the endorsement made by the advocate for the

plaintiff is against the interest of the plaintiff and therefore, it is not one which can be acted upon even though the plaintiff has not signed the

endorsement, and therefore, the order of remand is well founded and does not call for any interference by this Court.

In the decision relied on by the learned Counsel for the respondent viz., Banwari Lal Vs. Smt. Chando Devi (through L.R.) and another, , their

Lordships have extracted a portion of the judgment reported in Gurpreet Singh Vs. Chatur Bhuj Goel, and it is as follows:

Under Rule 3 as now stands, when a claim in . suit has been adjusted wholly or in part by any lawful agreement or compromise the compromise

must be in writing and Signed by the parties and there must be a completed agreement between them. To constitute an adjustment, the agreement

or compromise must itself be capable of being embodied in a decree. When the parties enter into a compromise during the hearing of a suit or

appeal, there is no reason why the requirement that the compromise should be reduced in writing in the form of an instrument signed by the parties

should be dispensed with. The court must therefore insist upon the parties to reduce the terms into writing.

Their Lordships have also referred to the decision relied on by the learned Counsel for the appellant viz., Byram Pestonji Gariwala v. Union

Bank of India AIR 1991 S.C. 2567 and have observed that it appears the attention of the learned Judges was not drawn to the aforesaid case of

this Court in Gurpreet Singh Vs. Chatur Bhuj Goel, , which I have referred above.

On considering all the three decisions of the Supreme Court, I am of the opinion that the judgment of the learned Principal District Judge,

Salem remanding the matter to the trial court on the ground that the advocate alone cannot sign the endorsement on the plaint and he had to obtain

the signature of the plaintiff also is well founded and it does not call for any interference by this Court. In that view, I am of the opinion that the

appeal is without merits and the same is liable to be dismissed and is accordingly dismissed.

In the result, the appeal is dismissed. No costs.